Steve Hartmann, Staff Representative, Wisconsin Council 40,
AFSMCE, AFL-CIO, P.O. Box 364,
Menomonie, Wisconsin 54751, for Burnett County Government Center Non-Professional
Employees, Local 279-A, of the American Federation of State, County and Municipal
Employees,
AFL-CIO, which is referred to below as the Union.

Mindy K. Dale, Weld, Riley,
Prenn & Ricci, S.C., Attorneys at Law, 3624 Oakwood Hills Parkway,
P.O. Box 1030, Eau Claire, Wisconsin 54702-1030, for Burnett County, Wisconsin, which is
referred to below as the County, or as the Employer.

ARBITRATION AWARD

The Union and the County are parties to a collective bargaining agreement which was
in
effect at all times relevant to this proceeding and which provides for final and binding
arbitration of
certain disputes. The parties jointly requested that the Wisconsin Employment Relations
Commission appoint Richard B. McLaughlin, a member of its staff, to serve as an Arbitrator
to
resolve a grievance filed on behalf of Marleen Seul, who is referred to below as the
Grievant.
Hearing on the matter was held on January 12, 2010, in Siren, Wisconsin. No transcript of
the
hearing was prepared. The parties filed briefs and reply briefs by April 5, 2010.

ISSUES

The parties stipulated the following issue for decision:

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Did the County violate Article 11 of the collective bargaining agreement
when it prorated vacations based on number of hours worked?

If so, what is the appropriate remedy?

RELEVANT CONTRACT
PROVISIONS

ARTICLE 2 ­ RECOGNITION

Section 2.01 The Employer recognizes the Union as the exclusive
bargaining agent
for all regular full time and all regular part-time non-professional employees in the
Burnett County Courthouse, Department of Health and Human Services and Forestry
and Parks Workers in the Forestry Department . . .

ARTICLE 3 ­ MANAGEMENT RIGHTS

Section 3.01 The Union recognizes and agrees that certain rights
related to the
management of the work force covered by this Agreement are the sole responsibility
of the Employer. These include, but are not limited to the right to establish
procedures . . . . The Employer agrees that such authority shall not be exercised in
a manner which violates the provisions of this Agreement. The parties agree that all
past practices in effect that are mandatory subjects of bargaining under Wisconsin
law, but not specifically referred to in this Agreement shall continue to remain in full
force and effect. . . .

ARTICLE 10 ­ SICK LEAVE

Section 10.01 . . .

A. Employees shall earn sick leave at the rate of seven and
one-half (7
½) hours each month of employment (eight (8) hours for employees
working eight hour shifts) up to ninety (90) hours each year (ninety-six (96) hours each year
for employees working eight hours per day);
part-time employees shall earn sick leave on a pro-rated basis. . . .

Section 10.02 In computing a month of employment for the purpose
of
earning sick
leave, the employee must be in "pay status". Pay status is defined as, a) being on sick
leave, b) being on vacation, c) receiving Worker's Compensation temporary total
disability benefits, or d) having worked for the Employer at least eleven (11) days
during any particular month. . . .

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ARTICLE 11 ­ VACATIONS

Section 11.01 Beginning with their starting date of employment,
employees covered
under the terms of this Agreement shall earn vacation with pay, on an anniversary
year basis, but will be taken on the calendar year basis, according to the following
schedule:

A. On (1) day for each month of service up to a maximum
of twelve (12)
days of vacation with pay;

B. After seven (7) years of service, employees shall begin to
accrue
fifteen (15) days of vacation with pay;

C. After fourteen (14) years of service, employees shall
begin to accrue
twenty (20) days of vacation with pay;

D. After nineteen 19 years of service, employees shall begin
to accrue
twenty-two (22) days of vacation with pay;

E. After twenty-two (22) years of service, employees shall
begin to
accrue twenty-three (23) days of vacation with pay.

Due to the transition of changing the current union employees vacation accrual
system to be taken on the calendar year. As of December 31, 2008 any vacation
accruals already accumulated under the previous vacation system will be protected
in a separate account for an indefinite period of time and drawn down only after
current year accrued time has been exhausted, and in compliance with the vacation
policy, until all the protected vacation accrual is used and the balance on the account
is zero, at which time the account will be closed out. No additional accruals will be
added to this protected account balance. . . .

Probationary employees shall be allowed to take vacation after they complete their
first six months of service. However, the employee will be required to reimburse the
employer for any vacation time taken if their probationary period is not satisfactorily
completed. . . .

Section 11.07 On retirement, disability or layoff, employees will be
paid their earned
vacation benefits on a prorated basis. Employees who quit, provided that they have
given the Employer two (2) weeks notice thereof, shall also be paid their earned
vacation benefits on a prorated basis.

BACKGROUND

The grievance form, dated February 15, 2008 (references to dates are to 2008, unless
otherwise noted), states the factual background thus: "On the paycheck received 2/15/08 the
employer negatively prorated vacation time accrual because the employee had taken off time
without
pay." The form requests that the County "Immediately reimburse the employee for the
reduction in
vacation time accrual, including time unjustly reduced in calendar year 2007."

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The agreement provisions set forth above come from the parties' 2008-10 labor
agreement,
which is effective, by its terms, January 1, but was executed by the parties on March 20,
2009. There
is no dispute that the Grievant used unpaid leave during the payroll period ending February
8, and
no dispute that the County, based on her use of unpaid leave, prorated her vacation accrual
for that
payroll period.

Broadly speaking, the parties' dispute focuses on evidence of past practice and of
bargaining
history, which is tied to the processing of the grievance. The background starts with the
asserted
practice.

Evidence on the asserted practice starts with Marcy Thalacker, a Human Resources
Generalist, who has worked for the County since April of 1979. She assumed payroll duties
in April
of 1986, while the County transitioned from an outside contractor to in-house payroll
processing.
When she began processing payroll records, the system rested on paper copies of individual
employee work calendars. In the early 1990's the County transitioned to a digital payroll
system.
Under the digital system, Thalacker would separately determine a fraction, the numerator of
which
was the hours actually worked (including hours in pay status) and the denominator of which
was the
total scheduled hours for the position. To determine total vacation accrual, Thalacker would
apply
this fraction to the individual employee's vacation entitlement based on years of service. On
the
employee's anniversary date of employment, Thalacker would "dump" the result onto the
employee's check. The employee was then expected to "use or lose" the total accrual within
the
guidelines of the governing labor agreement or County policy. This proration system dates
at least
from the onset of the digital system. Thalacker implemented this system under the direction
of the
then-incumbent County Administrator, Myron Schuster. The Union was not involved in the
implementation of this system, nor could Thalacker recall informing the Union "directly" of
its
implementation. Thalacker used this system for all full-time and all part-time employees,
whether
represented or not. The proration was not a secret, according to Thalacker. In January of
1995, she
mailed a letter to unit employees that expressly noted "what pro-rated vacation credits you
will have
earned . . ." She did not know if she sent a copy of this letter to the Union.

Thalacker used a number of digital payroll systems, including the PMSC System,
which was
replaced in October of 2001 by an upgrade to the Information Design, Inc., (IDI) system. In
2006,
the County migrated to the New World System (NWS). This was the first system that
automatically
computed vacation and sick leave accrual by payroll period, thus eliminating the need for
Thalacker
to annually input the necessary data and run the necessary calculations to reflect changing
accrual
and usage of paid leave. Thalacker's use of each of the digitally based systems continued the
proration calculation summarized above. During the implementation of NWS, the County
and the
Professional Unit, which is also AFSCME-represented, had a dispute which prompted the
negotiation of a Memorandum of Agreement, executed on October 7, which states:

Effective January 1, 2006, the County changed its payroll software program from IDI
. . . to NWS . . . As a result of the change the system was not capable

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of accruing the vacation-earning schedule on a payroll basis, tied to the employee's
anniversary date. Previously vacation was manually credited in one lump sum, on
an annual basis, on the employee's anniversary date. . . .

The parties had a good faith dispute as to the meaning of . . . the contract as it
applied
to cusp years. . . .

In order to resolve this dispute, the parties agree to back up the vacation accrual by
one (1) year on all cusp years to ensure the higher level of vacation credits are
available at the employee's 8th, 15th, 20th, and 23rd anniversary dates.

To match the accrual system to the lump sum credit, the County and the Union
reviewed each union employee's vacation balance to determine the amount of
vacation credit due each employee during the cusp years, since January 1, 2006.

The attached report lists the employees and the amount of vacation adjustment that
will be credited to them, and signifies that the union employees are in agreement of
and acceptance with this vacation credit. . . .

Thalacker reviewed the "attached report" with the employees. Ann Lane's signature
appears on the
Memorandum. The amounts listed and affirmed by each unit employee reflected County
proration
methodology.

Thalacker reviewed payroll records prior to her testimony to highlight the duration
and extent
of her proration calculations. The Grievant, for example, received the full accrual of
vacation hours
in 1997-98; 1998-99; 1999-00; 2000-01; 2001-02; and 2005-06. In 2002-03, she received a
prorated
benefit of 111 hours out of a maximum of 112.50. In 2003-04, she received a prorated
benefit of
112.25 out of a maximum of 141.50. In 2004-05, she received a prorated benefit of 145.25
out of
a maximum of 150. In 2006-07, she received a prorated benefit of 148.8454 out of a
maximum of
150. In 2007-08, she received a prorated benefit of 146.8835 out of a maximum of 150.
Linda
Anderson, a member of the Nonprofessional unit, has served as a Union officer. Thalacker's
records
show that Anderson received the full, or essentially full, accrual of vacation hours in
1997-98; 1998-99; 1999-00; 2003-04; 2005-2006; and 2006-07. In 2000-01, she received a
prorated benefit of 170
out of a maximum of 172.50. In 2001-02, she received a prorated benefit of 167.75 out of a
maximum of 172.50. Thalacker noted that some employees, including Anderson and the
Grievant,
questioned her on the difference between the amount she credited them and the total
available. In
each case, Thalacker explained the payroll system in detail. No employee objected to the
system
after her explanation, prior to the filing of the grievance. Thalacker's search of records
generated
eight other examples of bargaining unit members who had received a prorated amount of
vacation,
dating back to 1998. Thalacker also supplied documentation of sixteen employees from other
bargaining units who received a prorated vacation benefit over that time span.

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In the negotiation for the 2008-10 labor agreement, the County proposed to change
from an
anniversary based system of vacation usage to a calendar year system. Bargaining on
vacation is
difficult to reconstruct precisely, but was contentious, beginning in November of 2007 and
ending
with the execution date noted above. The parties ultimately agreed to switch to a calendar
year
system of usage and to modifications in the vacation rights of probationary employees. Both
parties
made proposals to alter Article 11. The Union proposed to add a twenty-five day step for
employees
after twenty-five years of service. The County made a series of proposals which included
language
linking accrual to "each month of service in which the employee is actively employed and in
pay
status" and to "hours worked".

The grievance's filing came during the bargaining process and the impact of the filing
on the
bargaining process is best set forth as an overview of witness testimony.

Ann Lane

Lane is the Union's President. Her notes indicate that on March 3, the parties met
regarding
the grievance. The County agreed at that meeting to stop prorating sick leave accrual based
on the
language of Article 10. Her notes state that, "County advised union that the vacation issue
would
be dealt with during bargaining." Lane testified that there was no discussion of prorating
vacation
during the collective bargaining process outside of the processing of the grievance. Her
notes
regarding the processing of the grievance show no discussion between March and May, 14,
2009,
when

We met regarding a different grievance and I resurfaced this one stating that it is still
not settled. Candace did not remember at first, but then said she would have to
review it and get back to me.

She added that her investigation of the grievance was the first time she became aware
of the alleged
practice regarding the proration of sick leave and vacation.

Marcy Thalacker

Thalacker played a limited role in the processing of the grievance, but did attend
meetings.
She noted that during those meetings the Grievant and Lane acknowledged that they knew
that the
County had prorated the vacation benefit in the past.

Candace Fitzgerald

Fitzgerald has served as County Administrator/Human Resources Director since
2002.
She
served as the County's spokesperson for the bargaining for a 2008-10 labor agreement. The
grievance arose several months after bargaining had started. During the processing of the
grievance,
Fitzgerald and Thalacker informed the Union of the long history of prorating vacation. Lane
and the
Grievant acknowledged that they were aware of the history and that the Grievant had lost
vacation
hours prior to the pay period that prompted the grievance.

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Fitzgerald could not recall telling the Union that the County would address the
proration
grievance during collective bargaining. She believed she met with the County Board on
March 20,
which she understood to be the date Lane's notes detail a statement by her that the County
would
discuss proration of vacation during collective bargaining. Bargaining for vacations proved
so
contentious that, to Fitzgerald, the issue often seemed to drive the bargaining. In her mind,
neither
party wanted to complicate the vacation negotiations by a discussion of prorating vacation
benefits.
The parties never discussed the point.

Steve Hartmann

Hartmann was aware of the grievance throughout the collective bargaining process
that
occurred after its filing. He viewed every proposal from the County in light of the grievance
and
consciously bargained in a fashion that would not lend the Union's position in bargaining to
compromise its position on the grievance. The Union made no proposal in bargaining to
resolve the
grievance and avoided any response that could have an adverse effect on it. The Union has
never
acknowledged agreement with the asserted practice.

Further facts may be set forth in the
DISCUSSION section below.

THE PARTIES' POSITIONS

The Union's Brief

The Union notes that the Grievant "had to take some short term unpaid time off to
care for
her custodial grandson" and that the County "pro-rated the grievant's vacation allocation."
The
grievance was filed "under the language of the 2005-07 CBA". Article 11 of that agreement
clearly
authorizes "days" of vacation to be based on "years" of service, "not hours worked." Nor is
there
any language to permit proration. Section 11.07 permits proration in specified
circumstances, none
of which are relevant here. At best, this section shows that the parties "have expressed those
cases
where pro-rationing of vacation is appropriate." The interpretation of Article 11 advocated
by the
County thus stands as nothing more than unilateral action, and a violation of "one of the
basic
precepts of contract interpretation", which is "to express one thing is to exclude all others."

The grievance was filed "while the parties were engaged in bargaining for the current
(2008-10) agreement". During that bargaining, the County sought unsuccessfully to modify
Article 11 to
include language that "would change vacation accrual to a system based on hours worked".
The
Union "understood the meaning and application of this language and rejected it."

Nor will the evidence support the assertion that past practice supports the County.
The
asserted long-term practice rests on unilateral County action. At best, three unit employees
have had
their vacation benefit prorated. There is no evidence that the County ever communicated its
administrative practice to the Union. With "the Union having no knowledge of the practice
the lack
of mutuality should be fatal to the County's defense." To further underscore this,

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Section 7.02 of the County Human Resources Manual "has vacations for full
time employees based
on their work schedule (37.5 or 40 hour/week) while part-time employees vacation is based
on
'monthly hours worked.'" The alleged practice was thus "a practice made up by the former
Administrator and continued by the current one without telling the Union or their
own
Administrative Committee."

Against this background, the grievance should be granted, and, "the remedy for the
County's
violative actions should be to make the grievant and all similarly situated employees whole
for all
loss of vacation and order the County to cease and desist from pro-rating the vacation of
full-time
employees."

The County's Brief

Noting that the parties' dispute spans two labor agreements, the County states that it
"does
not view any of the Section 11.01 language changes as material to the
grievance". Rather, the
determinative background is the silence of the parties' agreements "on the issue of vacation
pro-ration"; the absence of express bargaining on the point and the consistency of County
payroll
calculation of vacations "based on hours worked" for all part-time and full-time County
employees,
whether represented or not.

Thalacker's testimony establishes the governing factual background and underscores
that
from 1997 through 2009 every County employee had their vacation accrual calculated on the
basis
of hours worked. Over the transition from a paper system to a computerized payroll system,
the
County developed a practice which consisted of: 1) a determination of hours worked in the
previous
year; 2) a determination of the vacation accrual based on years of service; 3) proration of the
accrual
for any period in the previous year the employee did not work full-time; and 4) "dumping"
the
prorated accrual into the payroll system on the employee's anniversary date. This labor
intensive
effort was not done for County convenience and was not a "closely guarded secret." The
Grievant's
payroll records "dating from 1998 show numerous occasions when her vacation accrual was
reduced
from the full-time level based on hours worked." Beyond this, the evidence shows a Union
officer
also had her vacation accrual similarly reduced. County payroll records show fifteen such
reductions
for eight employees of this bargaining unit and nine more such reductions for five members
of the
Professional bargaining unit.

The Grievant also grieved the County's proration methodology for sick leave as well
as
vacation. The methodology was consistent for both, but due to the presence of a contractual
reference to "pay status" regarding sick leave, the County settled the former grievance. The
silence
of the contract regarding the latter provoked the arbitration of the vacation grievance.

It is unclear when the parties adopted the current language governing vacation
accrual, but
the language dates back at least twenty years. The evidence meets the most stringent arbitral
standard concerning the binding force of past practice. Consistent County issuance of
paychecks
including accrued vacation over this twenty year period demonstrates the practice

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was long-standing. It is, in any event, "hard to believe that nobody noticed the
practice of vacation
pro-ration over such a long period of time." It is more reasonable to expect employee
vigilance on
the point, particularly in a "use it or lose it" system, where some reductions were noteworthy
and
where at least one Union office was affected.

Employee pay stubs have used "Vacation Used" and "Vacation Available" entries
over a
considerable period, making the practice "readily ascertainable" and "known to both
management
and employees." The evidence also demonstrates mutuality. AFSCME represents three
County
bargaining units. The Professional unit "actually has specific vacation pro-ration language,
covering
part-time employees". It defies logic to believe AFSCME never "examined consistency
across units
in bargaining". It is more probable that the proration was so well established that it had
become
unremarkable. A 1995 County mailing to Health Department employees refers to "hours of
work"
to determine accrual as well as to "pro-rated vacation credits." A 2008 side letter with the
Professional unit resulted in employees reviewing their prorated vacation accrual with Union
officials and Thalacker.

Section 3.01 authorizes the County to establish procedures to implement policy.
Even
if
proration was not the only procedure to implement vacation accrual, it "met the needs of the
County
and employees, without a grievance, for somewhere in the vicinity of twenty (20) years."
Section
3.01 also continues past practices "in full force and effect." This provision makes it
impossible to
view the practice as based on no more than unilateral action.

Nor will the evidence support an assertion that the County seeks to establish a benefit
in
arbitration that it failed to achieve in bargaining. Proration of vacation has never been
expressly
addressed in bargaining, including that which produced the 2008-10 agreement. Even if the
Union
viewed the grievance's filing as a repudiation of the practice, the evidence shows no
mutuality of
understanding on the point.

A detailed review of documents purporting to establish bargaining history establishes
that
the parties never attempted to address the proration issue. Rather, the parties addressed in
considerable detail, a change to a calendar year system of vacation usage; a "paragraph to
protect an
employee's transitional balance from the 'use it or lose it' provisions of
Section 11.05"; and "the use
of vacation by probationary employees." Nor is it apparent that vacation accrual practices
can be
repudiated without altering the language of the agreement. It is, in any event, not evident
that the
silence of the contract somehow argues against proration. Rather, the plausibility of the
conflicting
views of vacation accrual demands the use of past practice as a guide.

Against this background, the County concludes that the grievance should be denied.
In the
alternative, the County:

suggests a "from this point forward" remedy instead of recalculating vacation for the
grievant from 2007 (as requested in the Grievance). The "remedy" should not
penalize the County for a long-standing practice that was not deemed controversial
until the date of the grievance.

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The Union's Reply Brief

The Union contends that in Clark County, Dec. No. 7520 (Burns, 12/09), the
County's
advocate persuaded the arbitrator that "a 40 year past practice of paying wages on a one
week lag
was not binding absent further evidence of mutuality." That line of argument is
irreconcilable to that
advanced in this case. The contract is not silent regarding the proration of vacation. Section
11.07
precludes that conclusion. Thus, the citation of Section 3.01 is of no benefit to the analysis
of the
agreement. The parties chose not to prorate vacation outside of the contingencies noted in
Section
11.07. The bargaining for a 2008-10 agreement establishes that the County seeks in
arbitration a
result the Union expressly rejected in bargaining.

The County's Reply Brief

The Union fails to address the impact of Section 3.01, which demands that past
practice be
enforced. The Union's footnote to the effect that the grievance does not address other than
full-time
employees complicates its contractual analysis, since the agreement is silent on all
employees. The
assertion that the interpretive guide that "to express one thing is to exclude all others"
governs this
grievance produces an absurd result, since the Union "is clearly not contesting the County's
right to
pro-rate vacation for employees who are not regularly scheduled to work full-time hours."
Accepting
the Union's chain of logic rewrites Article 11 and, "Contract provisions get re-written in
negotiations
and not at arbitration hearings." Beyond this, it is unclear whether the Union is contending
that an
employee on an unpaid leave of absence is entitled to "full vacation accrual."

The assertion that the County somehow has cheated employees of a benefit ignores
that, "The
amount of time that went into the meticulous implementation of the hours worked accrual
system
is arguably far greater than any amount of money 'saved' in terms of employee payroll."
Union use
of the Human Resources Manual has no evident bearing on the grievance. The issue remains
whether the accrual of a vacation "day", whether based on a "month" or a "year" of service,
connotes
full-time service. The Union also ignores that the Grievant was well aware of County
pro-ration,
having received checks with "hours adjustments on four occasions" within the six-month
period
preceding the grievance. The Union's case misplaces a bargaining issue in grievance
arbitration.

DISCUSSION

The stipulated issue focuses on Article 11, but resolution of the grievance turns on its
relationship to other agreement provisions as well as to past administration of the benefit.
The role
of other agreement provisions as well as past practice presumes the ambiguity of
Article 11.

The language of Article 11 is ambiguous. Union recourse to the interpretive maxim
that "to
express one thing is to exclude all others" presumes the ambiguity of the governing

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reference, but the recourse is simply arguing in the alternative. Section 11.01 accrues
"day(s)" of
vacation for "each month" or "years" of employment. As the Union asserts, these references
afford
little basis to justify proration. The "each month" or "years" are, however, tied to "of
service", and
that reference is ambiguous. Footnote 3/ of the Union's brief attempts to cut off the
ambiguity by
asserting, "This case is about the rights of full-time employees and is unrelated to any issues
involving employees regularly scheduled for less than full time hours." As the County's
reply brief
highlights, the governing terms are not so easily restricted. Assertion that "of service" can
mean
"hours worked" or "time in pay status" is plausible. Section 11.01 can be read to offer the
same
vacation accrual to an employee whose "service" is four hours per week as to an employee
whose
"service" is forty. For that matter, it is not clear if an employee, while on unpaid leave of
absence,
is entitled to accrue vacation at the same rate as while working. The employee on unpaid
leave is
"of service" if that reference connotes "occupying an authorized position." If, however, "of
service"
connotes actively offering labor for pay, then the employee on unpaid leave is not "of
service". This
is not to say the language requires any of these results. Rather, the point is that each result
is
plausible, which makes it impossible to say the language can only be read to support a single
outcome.

Even though the governing terms are ambiguous, a normal reading of them supports
the
Union. The references to "day(s)" or "years of service", standing alone, afford little support
for
proration, particularly if restricted to full-time employment. The "of service" reference can
be read
to imply a proration if there is a wide variance in hours worked, particularly regarding the
relationship of part-time to full-time employment. However, the strain is evident. The
County
acknowledges that the result of Thalacker's pre-NWS proration calculations was arguably not
worth
the time involved regarding unpaid time usage by full-time or part-time employees as
compared to
similarly scheduled co-employees.

The use of the interpretive maxim "to express one thing is to exclude all others"
affords little
support for the Union's view beyond the normal meaning of the governing terms. Whether
Section
11.07 can be read to support that view is troublesome standing alone. The proration Section
11.07
calls for affirms that an employee's vacation accrual is limited to active County service.
Viewed in
this light, the proration supports the reasonableness of reading "of service" as "time
worked."
Beyond this, as with most maxims of contract interpretation, one maxim runs headlong into
another.
The grievance equates vacation accrual under Article 11 with sick leave accrual under Article
10,
denying County ability to prorate either. This equates the silence of Article 11 to the terms
of
Section 10.02. This runs headlong into the maxim that a contract must be read as a whole,
giving
effect to all of its terms, see, for example, Elkouri & Elkouri,How
Arbitration Works, (5th ed., BNA,
1985) at 493 (6th ed., BNA, 2003) at 463-464).

If the terms of Section 11.01 stood alone, the Union's view of that section is
preferable to
the County's. The strength of the County's case is rooted in past practice and more
significantly in
the operation of Section 3.01.

The persuasive force of past practice turns on the agreement manifested by the
parties'
conduct. Here, the necessary preface to past practice evidence is to determine what type of

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practice is in dispute. The significance of this point is best stated by Arbitrator
Richard Mittenthal's
analysis of the use and the implications of the use of past practice. In The
Proceedings of the 14th
Annual Meeting of National Academy of Arbitrators, at 30-58 (BNA Books,
1961), Mittenthal put
the point thus:

Once the parties become bound by a practice, they may wonder how long it will be
binding and how it can be terminated.

Consider first a practice which is, apart from any basis in the agreement, an
enforceable condition of employment on the theory that the agreement subsumes the
continuance of existing conditions. Such a practice cannot be unilaterally changed
during the life of the agreement. For . . . if a practice is not discussed during
negotiations most of us are likely to infer that the agreement was executed on the
assumption that the practice would remain in effect.

The inference is based largely on the parties' acquiescence in the practice. If either
side should, during the negotiation of a later agreement, object to the continuance of
this practice, it could not be inferred from the signing of a new agreement that the
parties intended the practice to remain in force. Without their acquiescence, the
practice would no longer be a binding condition of employment. In face of a timely
repudiation of a practice by one party, the other must have the practice written into
the agreement if it is to continue to be binding.

Consider next a well-established practice which serves to clarify some ambiguity in
the agreement. Because the practice is essential to an understanding of the ambiguous
provision, it becomes in effect a part of the provision. As such it will be binding for
the life of the agreement. And the mere repudiation of the practice by one side during
the negotiation of a new agreement, unless accompanied by a revision of the
ambiguous language, would not be significant. For the repudiation alone would not
change the meaning of the ambiguous provision and hence would not detract from
the effectiveness of the practice.

It is a well-settled principle that where past practice has established a meaning for
language that is subsequently used in an agreement, the language will be presumed
to have the meaning given it by practice. Thus, this kind of practice can only be
terminated by mutual agreement, that is, by the parties rewriting the ambiguous
provision to supersede the practice, by eliminating the provision entirely, etc.

The County argues that the evidence supports a binding past practice of either type.

In my view, the evidence is insufficient to clarify the operation of Section 11.01. At
best,
the evidence establishes a consistent administrative policy that can claim no greater force
than that
granted by Section 3.01. In support of its view, the County cites the three criteria of
Celanese
Corp. of America, 24 LA 168, 172 (Justin, 1954), in which the Arbitrator stated:

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In the absence of a written agreement, "past practice", to be binding on both parties,
must be (1) unequivocal; (2) clearly enunciated and acted upon; (3) readily
ascertainable over a reasonable period of time as a fixed, and established practice
accepted by both parties.

As the County asserts, the evidence supports the first two criteria. However, the
evidence fails to
establish the third. The County notes that a Union officer was aware of the proration. Even
ignoring
the ambiguity on whether Anderson was a Union officer when she was made aware of the
proration,
the evidence affords no support for concluding Anderson acted as a representative of the
Union.
Thalacker acknowledged she advanced vacation to Anderson without consulting the Union or
the
labor agreement. This demonstrates the difficulty of concluding the Union accepted the
practice as
a party. Nothing in the development of the practice includes County notice to the Union or
Union
participation in the process. The Anderson example highlights that administration of the
vacation
benefit involved one-on-one contact involving individual accommodation. Whether or how
this
came to the Union's attention is problematic. That Thalacker explained the proration to
individual
employees is evident, but this appears to have involved no more than individual questioning
of
whether the accrual had been accurately calculated. There is no evidence either Thalacker or
the
affected employees ever questioned anything beyond whether an individual calculation was
consistent and accurate. Prior to the grievance's filing, there is no persuasive indication
anyone
questioned whether the calculation was rooted in the contract. Rather than Union acceptance
of
Thalacker's explanation, the evidence shows individual employee acceptance of the
persuasiveness
of her explanation.

The County has advanced a series of considerations to warrant the inference of Union
acceptance. The considerations have force, but fall short of establishing mutual acceptance.
The
difference in hours between Thalacker's proration and the contractual benefit was often
negligible.
There are instances of noticeable differences. On balance, however, this evidence establishes
individual acquiescence in the administration of the benefits over time. It falls short of
establishing
an "established practice accepted by both parties." This means the evidence of practice falls
short
of clarifying the ambiguity of Section 11.01.

The agreement is not, however, silent regarding past practice, and the analysis must
turn to
Section 3.01. That provision does not cover "a well-established practice which serves to
clarify
some ambiguity in the agreement" under the Mittenthal analysis. Rather, it covers, by its
terms,
those practices "not specifically referred to in this Agreement", which are the first type of
practice
discussed by Mittenthal. Under the Mittenthal analysis, this type of practice turns "largely
on the
parties' acquiescence". More specifically applied here, the purpose of Section 3.01 is
to preserve,
during the term of the agreement, those practices which are an accepted part of the
relationship
which have not, or have not yet, risen to the attention of the parties in collective bargaining.
Its
effect is to retain historically established conditions of employment during a contract, to
permit their
ultimate resolution in collective bargaining. The alternative is to invite unilateral, and
potentially
disruptive, unilateral action on understood conditions of employment.

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While the County's proof fails to establish the mutual agreement that makes practice
constitute a binding clarification of the agreement, it does establish long-term acquiescence
by
employees regarding the County's consistent application of vacation proration. That
acquiescence
includes a Union officer as well as the Grievant. While there is less than definitive proof of
Union
acceptance of the binding force of the practice, the proof is sufficient to establish the practice
was
known to employees and their representatives. The County was authorized, under Section
3.01, to
develop a procedure implementing Articles 10 and 11. The County's implementation of the
benefit
was consistent throughout the County for many years, was clear and was widely understood.
This
may fall short of establishing a binding practice clarifying Section 11.01, but it does establish
an
understood way of doing business sufficient to establish a practice under Section 3.01, which
must
be preserved during the agreement's term.

That the grievance arose prior to the execution of the 2008-10 agreement poses no
interpretive issue. That agreement is effective, by its terms, on January 1. Even if the
grievance is
considered to have arisen under the predecessor agreement, the Union did not repudiate the
practice.
Rather, it took the position that Section 11.01 will not permit proration. This position
dictated the
Union's stance that it would initiate no bargaining on proration for fear the bargaining might
compromise its position that the contract already addressed the dispute. If Section 11.01
stood alone,
this argument could be persuasive. It does not, and the terms of Section 3.01 must be
considered.
In my view, that section demands that the proration practice continue while the labor
agreement is
in effect. Even if the practice is repudiated by the Union, the ambiguity of Section 11.01
poses an
issue for bargaining. I do not believe the language of Section 11.01 is sufficiently clear
standing
alone to invalidate the County's consistent, broadly known, and long-term administration of
the
benefit. Thus, the grievance has been denied.

It is appropriate to clarify this conclusion by tying it more closely to the parties'
arguments.
The County contends that its authority to develop procedures under Section 3.01 permitted it
to
establish the proration of vacation accrual under Section 11.01, and over the course of time,
the
procedure became a practice that cannot be repudiated. As noted above, the difficulty with
this line
of argument is that in the absence of evidence establishing mutual agreement, past practice
does not
codify agreement, but unilateral action. The evidence falls short of establishing Union
acceptance
of proration as a binding clarification of Section 11.01. Nor can practice, under Section
3.01, clarify
a "procedure" authorized under Section 3.01. If, for example, the parties had conflicting
departmental practices on accruing vacation, Section 3.01 affords no basis for the County to
make
any one of a conflicting number of departmental practices a uniform procedure. Rather, it
would
hold the conflicting practices in effect during the agreement, until the conflict could be
addressed
in bargaining. Put more simply, the practices preserved under Section 3.01 can not clarify
contract
language because they are "not specifically referred to in this Agreement". This underscores
that the
purpose of Section 3.01 is to preserve understood conditions of employment which are
mandatory
subjects of bargaining, pending their resolution during bargaining.

County evidence regarding practice in units other than the Non-Professional unit has
limited
use. Absent evidence that the parties considered other units in bargaining the agreement

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at issue here, extra-unit practices afford no persuasive basis to interpret Section 11.01.
It has some
bearing on a Section 3.01 practice. That section has less to do with mutual understanding
than with
acquiescence in an established course of conduct. "Practice" in the Section 3.01 sense is less
permanent, to reflect that the established course of conduct is to be continued under the labor
agreement until parties can bargain the point. That the County's proration was consistent
across all
units has some bearing on proving an established course of conduct. For similar reasons,
County
practice with non-represented employees has some bearing on the case. The Union's
assertion that
the policy governing non-represented employees has a bearing on the grievance has some
persuasive
force. The strain between the governing language and the proration practice is evident
regarding the
policy, but that strain does not establish clear language pointing to a single interpretation on
what
"of service" means. This restates, rather than resolves, the interpretive issue posed by the
grievance.

Bargaining history affords limited guidance. Whether or not Fitzgerald stated the
County
would address vacation accrual in bargaining, the fundamental ambiguity of Section 11.01
and the
role of practice under Section 3.01 remained unresolved. The Union's decision to avoid
bargaining
on the point to preserve its position under Section 11.01 is understandable, but did nothing to
resolve
the ambiguity posed. If the agreement did not include Section 3.01 and if the agreement
addressed
vacation accrual for part-time employees, the Union's reading of Section 11.01 is
persuasive.
However, the long-standing practice of proration cannot be ignored under Section 3.01 and
the
ambiguity posed by Section 11.01 regarding other than full-time employees pose too
substantial a
problem to be resolved by inferring that the normal meaning of the terms of Section 11.01
supports
the Union's view over the County's. The County's view of a binding practice enshrines
unilateral
action, and the Union's view of Section 11.01 ignores a long-standing and known means of
doing
business. Both seek an interpretation of Section 11.01 through arbitration that has yet to be
secured
in bargaining. The application of Section 3.01 cannot reach the interpretive issue posed by
Section
11.01 on the evidence posed, but its application preserves an understood procedure pending
the
collective bargaining necessary to resolve the problem.

AWARD

The County did not violate Article 11 of the collective bargaining agreement when it
prorated
vacations based on number of hours worked, because Section 3.01 preserves the effect of its
past
administrative practice of proration during the term of the labor agreement.